Carrie Braun v. Ultimate Jetcharters , 2016 FED App. 0159P ( 2016 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0159p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
CARRIE BRAUN, ┐
Plaintiff-Appellee/Cross-Appellant (13-4145 & 14-3816), │
│
Plaintiff-Appellee (15-3462), │
> Nos. 13-4145/ 14-3816/ 15-3462
│
v. │
│
ULTIMATE JETCHARTERS, LLC, │
Defendant-Appellant/Cross-Appellee (13-4145 & 14-3816), │
│
Defendant-Appellant (15-3462). │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 5:12-cv-01635—Sara E. Lioi, District Judge.
Argued: April 22, 2016
Decided and Filed: July 8, 2016
Before: DAUGHTREY, CLAY, and STRANCH Circuit Judges.
_________________
COUNSEL
ARGUED: Sidney N. Freeman, MCNAMARA, DEMCZYK CO., L.P.A., Uniontown, Ohio,
for Appellant/Cross-Appellee Jetcharters. Donald C. LeRoy, Hamilton, Ohio, for
Appellee/Cross-Appellant Braun. ON BRIEF: Sidney N. Freeman, MCNAMARA,
DEMCZYK CO., L.P.A., Uniontown, Ohio, for Appellant/Cross-Appellee Jetcharters. Donald
C. LeRoy, Hamilton, Ohio, for Appellee/Cross-Appellant Braun.
1
Nos. 13-4145/ 14-3816/ 15-3462 Braun v. Ultimate Jetcharters Page 2
_________________
OPINION
_________________
CLAY, Circuit Judge. Defendant Ultimate Jetcharters, LLC, sometimes referred to in
this litigation as Ultimate Jetcharters, Inc. (“UJC”), appeals from the judgment in favor of
Plaintiff Carrie Braun (“Plaintiff”) on her claim for retaliatory discharge in violation of Ohio
Rev. Code § 4112.02(I). Pursuant to a jury verdict in Plaintiff’s favor, the district court entered
an initial judgment awarding her compensatory and punitive damages. The court later granted in
part and denied in part Plaintiff’s motion for attorney fees, and thereafter entered final judgment
incorporating such fees. That final judgment is the subject of UJC’s appeal No. 13-4145 and
Plaintiff’s cross-appeal No. 14-3816. The district court later granted Plaintiff’s Rule 60(a)
motion to correct the judgment to reflect that Ultimate Jetcharters, LLC is UJC’s correct
moniker. UJC’s appeal No. 15-3462 is taken from that amended judgment. For the reasons set
forth below, we AFFIRM the district court’s judgment in full.
BACKGROUND
UJC is a corporation that provides private jet charter services, flying cargo and
passengers to destinations across the United States and internationally. In April 2011, UJC hired
Plaintiff, who is female, to work as a co-pilot. Robert “Bob” Rossi (“Rossi”) and Floyd “Burt”
Wells (“Wells”) were two male pilots that also worked at UJC. After multiple altercations
between Plaintiff, Rossi, and Wells, which Plaintiff perceived to constitute sexual harassment,
Plaintiff made several phone calls and eventually wrote an email to UJC management
complaining about her coworkers’ conduct. On March 12, 2012—roughly three weeks after she
sent the email—Plaintiff’s employment with UJC was terminated.
Plaintiff subsequently filed suit against Ultimate Jetcharters, Inc., Rossi, and Wells
(collectively “Defendants”) in federal court, alleging, inter alia, that she was terminated in
retaliation for her complaints. Defendants filed an answer offering a general denial of the
allegations. Notably, Defendants’ answer “admit[ted] that UJC was initially a corporation as
alleged in paragraph #3 [of Plaintiff’s complaint], but was converted to a limited liability
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company on September 28, 2010.” (R. 4, PageID 40.) Plaintiff did not amend her complaint in
response, and Defendants’ subsequent dispositive motions failed to press the issue of UJC’s
proper moniker or corporate form. Defendants’ motions, however, proved successful at
narrowing Plaintiff’s case to a single cause of action against UJC for retaliation under Ohio’s
Title VII analogue, Ohio Rev. Code § 4112.02(I).1
On August 19, 2013, Plaintiff’s case proceeded to trial on that remaining claim. Plaintiff
served as the sole witness in support of her case. She testified that Rossi and Wells, with whom
she worked on a regular basis, continually “harassed” her about her marital status, her uniform,
and her off-duty behavior; she described several instances of the purported harassment in detail.
Plaintiff testified that she reported the harassment to UJC’s director of operations, Dave Parsons
(“Parsons”), in four phone calls made over the course of her employment. In all of these calls,
Plaintiff conveyed her belief that Rossi and Wells were harassing her because she was female.
After the fourth report, Parsons instructed Plaintiff to put her concerns in writing. Thus, on
February 20, 2012, Plaintiff sent an email to both Rossi, with whom she had had her most recent
altercation, and Parsons. The subject line of the email was “Cease and desist!” (R. 44-3, PageID
415.) In the body of the email, Plaintiff asserted that both Rossi’s and Wells’ behavior was
“bordering on harassment” and that she did not “want . . . the situation to escalate as it has been
doing to full fledged harassment.” (Id.)
On March 12, 2012—roughly three weeks after sending her email—Plaintiff received a
phone call from John Gordon (“Gordon”), UJC’s president and CEO, who informed Plaintiff that
her employment was being terminated. Plaintiff testified that Gordon provided two reasons for
her termination during this conversation: that Plaintiff had sent “[i]nappropriate e-mails,” and
that Plaintiff’s “[c]onduct while on the road . . . while not performing job functions was not in
line with [UJC’s] image.” (R. 120, PageID at 1666–67.) According to Plaintiff, Gordon refused
to clarify to which emails or what conduct he was referring.
1
On appeal, UJC argues that the district court erred by denying its motion for summary judgment as to this
claim. We do not address that argument, however, because “a losing party may not ‘appeal an order denying
summary judgment after a full trial on the merits.’” Hill v. Homeward Residential, Inc., 799 F.3d 544, 549–50 (6th
Cir. 2015) (quoting Ortiz v. Jordan, 562 U.S. 180, 184 (2011)).
Nos. 13-4145/ 14-3816/ 15-3462 Braun v. Ultimate Jetcharters Page 4
At the close of Plaintiff’s case in chief, UJC made an oral motion for judgment as a
matter of law (“JMOL”) pursuant to Federal Rule of Civil Procedure 50(a). In so doing, UJC’s
counsel stated: “The reason for [JMOL] is very specific. The evidence shows that no complaint
about sexual harassment or about discrimination was made by Ms. Braun.” (R. 121, PageID
1782.) The subsequent colloquy focused on whether Plaintiff had engaged in protected activity
necessary for establishing a retaliation claim by submitting a legally sufficient “complaint” to
UJC management, and whether Plaintiff’s email to Rossi and Parsons satisfied that requirement.
The district court ultimately denied UJC’s motion, and the trial continued with UJC’s defense.
UJC proffered the testimony of some fourteen witnesses. As relevant here, Gordon
testified that Plaintiff’s termination had nothing to do with her complaints of harassment; rather,
she was terminated because of her performance on the job. As examples of Plaintiff’s
performance issues, Gordon stated that he had received reports that Plaintiff had violated the
“sterile cockpit rule” by using her cell phone while piloting an aircraft below 10,000 feet; that on
one occasion, Plaintiff became intoxicated and danced inappropriately at a bar while spending
the night in Atlantic City as part of her shift; that Plaintiff had once dangerously performed a
turning maneuver while piloting an aircraft that she had leveled off at an altitude of 400 feet; and
that Plaintiff had a habit of unnecessarily executing so-called “steep attitude” or “max
performance” climbs, which involve climbing steeply after takeoff. Gordon admitted on cross
examination that he had been informed of Plaintiff’s verbal complaints of “harassment” by Rossi
and Wells, but that he did not think their behavior constituted harassment. Parsons also testified
at the trial, stating, inter alia, that he “[a]bsolutely” provided input on the decision to terminate
Plaintiff. (R. 121, PageID 1873.)
Plaintiff was recalled to provide rebuttal testimony, during which she denied any
inappropriate conduct or provided explanations for the purportedly inappropriate conduct that
allegedly motivated her termination. The jury also heard testimony, including by admission on
cross examination of UJC’s own witnesses, that UJC’s male pilots often engaged in some of the
same behavior, such as violating the “sterile cockpit rule,” that allegedly motivated Plaintiff’s
termination. Before the case was submitted to the jury, UJC again moved for JMOL. UJC’s
counsel provided no additional support for that motion, but stated that UJC was renewing solely
Nos. 13-4145/ 14-3816/ 15-3462 Braun v. Ultimate Jetcharters Page 5
for the purpose of “protect[ing] the record.” (R. 123, PageID 2490–91.) The district court once
again denied the motion.
On August 26, 2013, the jury returned a verdict in favor of Plaintiff, awarding her
$70,250.00 in compensatory damages and $100,000.00 in punitive damages. Plaintiff thereafter
filed a motion for attorney’s fees; UJC filed a motion for remittitur of punitive damages and a
Rule 50(b) renewed motion for JMOL or for a new trial. See Fed. R. Civ. P. 50(b) (allowing a
renewed motion for JMOL to “include an alternative or joint request for a new trial under Rule
59”). On July 30, 2014, the district court issued an order and opinion denying UJC’s motion for
JMOL or a new trial, denying UJC’s motion for remittitur, and granting in part Plaintiff’s motion
for attorney’s fees. Both Plaintiff and UJC timely appealed.2
When Plaintiff later attempted to collect on her judgment against Ultimate Jetcharters,
Inc., she received a letter from UJC’s counsel stating, in pertinent part:
The company you sued is Ultimate Jetcharters, Inc. Ultimate Jetcharters, Inc. was
closed and is out of business without assets. It was the operating company owned
by investors from whom Ultimate Jet, LLC, (the holding company which owns
Ultimate Jetcharters, LLC) purchased the assets of Ultimate Jetcharters, Inc.
several years ago. Irrespective of the fact that Ultimate Jetcharters, Inc., the
Defendant in your action, has no assets, Mr. Gordon, on behalf of Ultimate
Jetcharters, LLC, wants to continue to attempt to resolve the issues and settle this
matter. . . . To that end, Mr. Gordon has authorized me to re-extend the offer
made in mediation of [$125,000.00] . . . .
(R. 171-1, PageID 3033.) As the district court later summarized, “[i]t seemed . . . that plaintiff
had never been employed by Ultimate Jetcharters, Inc., but, instead, had been employed by
Ultimate Jetcharters, LLC.” (R. 185, PageID 3192.) Plaintiff thereafter filed a motion to correct
the judgment pursuant to Federal Rule of Civil Procedure 60(a).
On March 31, 2015, the district court granted Plaintiff’s motion and entered a new final
judgment listing Ultimate Jetcharters, LLC as the defendant. In its order, the district court held
2
Plaintiffs’ briefing on appeal explicitly declines to provide any developed argument regarding the district
court’s reduction in her requested attorney fees. (See Pl.’s Br. at 30–31 (“[T]his assignment of error will not be
addressed by the undersigned beyond the statement above regarding the applicable standard of review.”).) We
therefore conclude that Plaintiff has waived this issue. See Fed. R. App. P. 28(a)(8); Brindley v. McCullen, 61 F.3d
507, 509 (6th Cir. 1995) (“We consider issues not fully developed and argued to be waived.”).
Nos. 13-4145/ 14-3816/ 15-3462 Braun v. Ultimate Jetcharters Page 6
that the prosecution of the case against “Ultimate Jetcharters, Inc.” rather than “Ultimate
Jetcharters, LLC” amounted to a clerical error. In support of this conclusion, the district court
noted that UJC’s own filings and witnesses substantially added to any confusion regarding UJC’s
corporate form, and that the LLC’s counsel and CEO defended the lawsuit against Ultimate
Jetcharters, Inc. as though the LLC were the real party in interest. The court concluded: “Under
these circumstances, to permit Ultimate Jetcharters, Inc. to roll the dice at trial and then hide
behind a change in corporate structure when it comes time to collect on the judgment would
make a mockery of the Court’s proceedings.” (R. 185, PageID 3201.)
In response to the newly-entered final judgment listing Ultimate Jetcharters, LLC as the
defendant, UJC timely filed an amended notice of appeal.
DISCUSSION
I. UJC’s Renewed Motion for Judgment as a Matter of Law or a New Trial
Preservation of the Issues
In its renewed motion for JMOL or a new trial, UJC made many of the same arguments
that it now makes on appeal—namely, that Plaintiff’s evidence at trial was legally insufficient to
establish three of the four elements of her prima facie case of retaliation, and that she similarly
failed to demonstrate that UJC’s nondiscriminatory reasons for her termination were pretextual.
We note, however, that it is unlikely that many of these sufficiency arguments were properly
preserved by UJC’s pre-verdict motions for JMOL.3 This discrepancy is relevant due to “the
well-established proposition that a post-trial motion for judgment as a matter of law ‘is not
available at anyone’s request on an issue not brought before the court prior to submission of the
case to the jury.’” Ford v. Cty. of Grand Traverse, 535 F.3d 483, 491 (6th Cir. 2008) (quoting
Am. & Foreign Ins. Co. v. Bolt, 106 F.3d 155, 160 (6th Cir. 1997)); see also Libbey-Owens-Ford
Co. v. Ins. Co. of N. Am., 9 F.3d 422, 426 (6th Cir. 1993) (“A party who has failed to move for a
3
Determining which arguments were properly preserved would require further analysis of the “specific
grounds” for UJC’s oral motions. See Kusens v. Pascal Co., 448 F.3d 349, 361 (6th Cir. 2006) (noting that “Rule
50(a) requires a motion for judgment as a matter of law to state the ‘specific grounds’” upon which it is based).
Nos. 13-4145/ 14-3816/ 15-3462 Braun v. Ultimate Jetcharters Page 7
directed verdict cannot request the district court to rule on the sufficiency of the evidence
supporting a verdict against him nor can he raise this issue on appeal.”).
Below, the district court opined that analysis of Rule 50’s waiver principle in this case
would be an “academic” exercise. This is so, the district court reasoned, because UJC’s
sufficiency arguments would necessarily be resolved in the context of its Rule 59 motion for a
new trial. Cf. Park W. Galleries, Inc. v. Hochman, 692 F.3d 539, 544 (6th Cir. 2012) (observing
that “the governing principle in the district court’s consideration of a motion for a new trial is
whether . . . such course is required in order to prevent an injustice” (internal quotation marks
omitted)). We have cautioned, however, that motions for a new trial should not be used as a
loophole for presenting sufficiency arguments that were not properly preserved by a pre-verdict
motion for JMOL. See U.S. ex rel. A+ Homecare, Inc. v. Medshares Mgmt. Grp., Inc., 400 F.3d
428, 450 n.17 (6th Cir. 2005); S. Ry. Co. v. Miller, 285 F.2d 202, 206 (6th Cir. 1960) (“No
motion for directed verdict having been made, the question of the sufficiency of the evidence to
support the jury’s verdict is not available as a ground for a motion for new trial.”). But see
Portage II v. Bryant Petroleum Corp., 899 F.2d 1514, 1523 (6th Cir. 1990) (“If the evidence was
insufficient as a matter of law . . . the court can order a new trial.” (quoting Rymer v. Davis,
754 F.2d 198, 199–200 (6th Cir. 1985))); 9B Wright et al., Federal Practice & Procedure:
Federal Rules of Civil Procedure § 2539 (3d ed. 2016) (“[T]he evidence may be wholly
insufficient to support the verdict but the trial court cannot order judgment as a matter of law
under Rule 50(b) [due to a procedural blunder]. In those circumstances the district court, on
proper motion, has the authority to order a new trial.”).
Nevertheless, because the parties failed to brief these issues, and because we conclude
that UJC’s sufficiency arguments fail on the merits in any event, we join the district court in
declining to address whether UJC’s sufficiency arguments were waived.4
4
We reiterate, however, that Rule 50 is not a vehicle for presenting legal arguments developed only after an
unfavorable jury verdict; nor, for that matter, is the Rule intended to permit defendants to hold unlitigated legal
arguments in reserve as get-out-of-verdict-free cards. See Ford, 535 F.3d at 491–92. A similar policy undergirds
our holding in Southern Railway Co., 285 F.2d at 206: careless (or unscrupulous) parties ought not to be granted
multiple opportunities to roll the dice with a jury.
Nos. 13-4145/ 14-3816/ 15-3462 Braun v. Ultimate Jetcharters Page 8
Standard of Review
We review de novo the district court’s denial of UJC’s motion for JMOL made pursuant
to Federal Rule of Civil Procedure 50(b). Rhinehimer v. U.S. Bancorp Invs., Inc., 787 F.3d 797,
804 (6th Cir. 2015). “In so doing, we may not weigh the evidence, question the credibility of
witnesses, or substitute our own judgment for that of the jury.” Smith v. Rock-Tenn Servs., Inc.,
813 F.3d 298, 306 (6th Cir. 2016).
[W]e may grant such a motion only when viewing the evidence in a light most
favorable to the non-moving party, giving that party the benefit of all reasonable
inferences, there is no genuine issue of material fact for the jury, and reasonable
minds could come to but one conclusion in favor of the moving party.
Id. (internal quotation marks omitted). The district court’s denial of UJC’s motion for a new
trial, which argued that the verdict was against the weight of the evidence, is reviewed for abuse
of discretion. United States v. Callahan, 801 F.3d 606, 616 (6th Cir. 2015). “We simply review
the evidence and the district court’s ruling, and we reverse only if we have ‘a definite and firm
conviction’ that the district court committed ‘a clear error of judgment’” by declining to order a
new trial. Id. at 617 (quoting United States v. Kuehne, 547 F.3d 667, 692 (6th Cir. 2008)); see
also Armisted v. State Farm Mut. Auto. Ins. Co., 675 F.3d 989, 994–95 (6th Cir. 2012). For UJC
to succeed on either of its motions, it “must overcome the substantial deference owed a jury
verdict.” Radvansky v. City of Olmsted Falls, 496 F.3d 609, 614 (6th Cir. 2007).
Analysis
Ohio Revised Code § 4112.02(I) prohibits “any person to discriminate in any manner
against any other person because that person has opposed any unlawful discriminatory practice
defined in this section . . . .” This language mirrors that of Title VII, which establishes civil
penalties under federal law for any employer that “discriminate[s] against any of his employees
. . . because he has opposed any practice made an unlawful employment practice by this
subchapter . . . .” 42 U.S.C. § 2000e-3(a). Because of these statutes’ similar language and
origin, Ohio courts have held that “[f]ederal law provides the applicable analysis for reviewing
retaliation claims” brought under Ohio Rev. Code § 4112.02(I). Baker v. Buschman Co.,
713 N.E.2d 487, 491 (Ohio Ct. App. 1998); see also Plumbers & Steamfitters Joint
Nos. 13-4145/ 14-3816/ 15-3462 Braun v. Ultimate Jetcharters Page 9
Apprenticeship Comm. v. Ohio Civil Rights Comm’n, 421 N.E.2d 128, 131 (Ohio 1981)
(“[F]ederal case law interpreting Title VII . . . is generally applicable to cases involving alleged
violations of [Ohio Rev. Code] Chapter 4112.”).
Under federal and Ohio law, an employee attempting to prove unlawful retaliation must
first establish a prima facie case. See generally McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53 (1981); see also
Plumbers & Steamfitters, 421 N.E.2d at 131 (applying the McDonnell Douglas/Burdine burden-
shifting framework to a claim of employment discrimination brought under Ohio Rev. Code
Chapter 4112). Establishing a prima facie case of retaliation requires the employee to
demonstrate:
(1) . . . he engaged in a protected labor activity under Ohio or federal law,
(2) . . . his engagement in protected activities was known to the defendant,
(3) defendant took an employment action adverse to plaintiff . . . , and
(4) there was a causal connection between the protected activity and the adverse
employment action.
Baker, 713 N.E.2d at 491 (citing Rudy v. Loral Def. Sys., 619 N.E.2d 449, 454 (Ohio Ct. App.
1993)); see also Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000) (“The burden of
establishing a prima facie case in a retaliation action is not onerous, but one easily met.”).5
“Establishment of the prima facie case in effect creates a presumption” that the employer
retaliated against the employee. Burdine, 450 U.S. at 254. “If Plaintiff establishes a prima facie
case . . . then the burden shifts to Defendants to articulate a legitimate, [nonretaliatory] reason for
Plaintiff’s discharge.” Johnson v. Univ. of Cincinnati, 215 F.3d 561, 578 (6th Cir. 2000). Upon
production of such a reason, “Plaintiff must . . . demonstrate that the proffered reason was not the
true reason for the employment action—i.e., that the reason was a mere pretext for” retaliation.
Id. at 578–79.
A. Protected activity
5
The parties do not dispute that Plaintiff’s termination constitutes an adverse employment action, thereby
establishing the third element of a prima facie case.
Nos. 13-4145/ 14-3816/ 15-3462 Braun v. Ultimate Jetcharters Page 10
Both Title VII and Ohio Rev. Code § 4112.02(I) contain a so-called opposition clause,
under which employers may not retaliate against any employee that “opposed” an unlawful
practice. See Ohio Rev. Code Ann. § 4112.02(I); 42 U.S.C. § 2000e-3(a). Such opposing
conduct constitutes a protected activity for the purposes of establishing the first element of a
prima facie case of retaliation. See Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 469 (6th
Cir. 2012).
The Equal Employment Opportunity Commission . . . has identified a number of
examples of ‘opposing’ conduct which is protected by Title VII, including
complaining to anyone (management, unions, other employees, or newspapers)
about allegedly unlawful practices . . . and opposing unlawful acts by persons
other than the employer—e.g., former employers, union, and coworkers.
Johnson, 215 F.3d at 579. Importantly, “[a] person opposing an apparently discriminatory
practice does not bear the entire risk that it is in fact lawful; he or she must only have a good
faith belief that the practice is unlawful.” Booker v. Brown & Williamson Tobacco Co., Inc.,
879 F.2d 1304, 1312–13 (6th Cir. 1989).
As UJC notes, however, “a vague charge of discrimination . . . is insufficient to constitute
opposition to an unlawful employment practice.” Id. at 1313; see also Fox v. Eagle Distrib. Co.,
510 F.3d 587, 592 (6th Cir. 2007) (holding the plaintiff’s actions did not constitute a legally
sufficient complaint where “the record [did] not contain any evidence that [the plaintiff]
specifically alleged discriminatory employment practices in his discussion with [a manager]”);
Balding-Margolis v. Cleveland Arcade, 352 F. App’x 35, 45 (6th Cir. 2009) (holding same
where the plaintiff’s multiple complaints to management did not indicate that she “was objecting
to discriminatory conduct against her based on her membership in a protected class”);
Willoughby v. Allstate Ins. Co., 104 F. App’x 528, 530–31 (6th Cir. 2004) (holding same where
the plaintiff’s letter to management made only vague references to unhappiness among
Caucasian employees). Still, these holdings do not “require that the plaintiff’s complaint be
lodged with absolute formality, clarity, or precision.” Yazdian v. ConMed Endoscopic Techs.,
Inc., 793 F.3d 634, 645 (6th Cir. 2015) (internal quotation marks omitted).
Based on the above authority, UJC asserts that Plaintiff’s multiple complaints to Parsons,
as well as her email to Rossi and Parsons, were too vague to constitute a legally sufficient
Nos. 13-4145/ 14-3816/ 15-3462 Braun v. Ultimate Jetcharters Page 11
complaint to management. We disagree. At trial, Plaintiff testified that during each of the four
calls she made to Parsons, she explicitly relayed her belief that she was being mistreated by
Rossi and Wells because she was female. Indeed, Plaintiff testified that in the last of these calls,
she told Parsons: “This is discrimination. This is harassment. [Rossi and Wells] are only doing
this because they do not like to fly with women.” (R. 120, PageID 1661.) These phone calls
were followed by Plaintiff’s “Cease and desist!” email, in which she twice indicated that she
believed Rossi’s and Wells’ conduct was nearing “harassment.” (R. 44-3, PageID 415.) Taken
together, Plaintiff’s phone calls and email provided more than sufficient evidence of a legally
valid complaint of unlawful conduct. Stated differently, the evidence presented at trial
sufficiently established that UJC should “have reasonably understood that [Plaintiff] was making
a complaint of [sex] discrimination in exercise of her rights under O.R.C. § 4112.02.” Kiehl v.
Univ. Hosp. Health Sys.-Heather Hill, Inc., No. 1:08 CV 763, 2009 WL 1586326, at *7 (N.D.
Ohio June 4, 2009).
UJC argues that under Osaze v. City of Strongsville, No. 86474, 2006 WL 562186 (Ohio
Ct. App. 2006), Plaintiff’s complaints about her coworkers could not, as a matter of law,
constitute valid complaints regarding unlawful activity. See id. at *4 (affirming dismissal of the
plaintiff’s retaliation claim where he had “only complained about discriminatory conduct by his
coworkers,” rather than his employer). But this argument ignores black-letter Ohio law stating
that harassment by coworkers can create a “hostile work environment,” which in turn violates of
Ohio Rev. Code § 4112.02(A). See Hampel v. Food Ingredients Specialties, Inc., 729 N.E.2d
726, 732 (Ohio 2000). It follows that Plaintiff’s complaint of coworker harassment could legally
constitute opposition to “an unlawful discriminatory practice defined in” Ohio Rev. Code
§ 4112.02. See Ohio Rev. Code § 4112.02(I). As we noted above, moreover, the operative
question is not whether Rossi’s and Wells’ conduct was actually unlawful, but whether Plaintiff
held an objectively reasonable and good faith belief to that effect. See Booker, 879 F.2d at
1312–13. The jury answered that question in the affirmative, and the record does not compel a
conclusion to the contrary. See Rhinehimer, 787 F.3d at 811 (“[T]he issue of objective
reasonableness should be decided as a matter of law only when no reasonable person could have
believed that the facts [known to the employee] amounted to a violation or otherwise justified the
Nos. 13-4145/ 14-3816/ 15-3462 Braun v. Ultimate Jetcharters Page 12
employee’s belief that illegal conduct was occurring.” (second alteration in original) (internal
quotation marks omitted)).
B. UJC’s knowledge of Plaintiff’s protected activity
UJC’s arguments regarding the second element of Plaintiff’s prima facie case are also
unpersuasive. To establish that element, Plaintiff needed to proffer “evidence sufficient to
establish that the individuals charged with taking the adverse employment action knew of”
Plaintiff’s complaint. Mulhall v. Ashcroft, 287 F.3d 543, 552 (6th Cir. 2002); Baker, 713 N.E.2d
at 491. The evidence presented at trial satisfied that standard: Plaintiff’s complaints were made
to Parsons, who testified that he “[a]bsolutely” provided input on the decision to terminate her
employment. (R. 121, PageID 1873.) And Gordon, who testified that he ultimately made the
termination decision, admitted on cross examination that he was aware of Plaintiff’s complaints
of “harassment” by Rossi and Wells, but that he did not think that the complained-of behavior
actually constituted harassment. We find this evidence more than “sufficient to establish that the
individuals charged with taking the adverse employment action knew of the protected activity.”
Mulhall, 287 F.3d at 552.
C. Causation
To establish the fourth element of her prima facie case, Plaintiff was required to “proffer
evidence sufficient to raise the inference that [her] protected activity was the likely reason for the
adverse action.” Spengler v. Worthington Cylinders, 615 F.3d 481, 493 (6th Cir. 2010) (quoting
Upshaw v. Ford Motor Co., 576 F.3d 576, 588 (6th Cir. 2009)). “Closeness in time is one
indicator of a causal connection,” id. at 494, “[b]ut where some time elapses between when the
employer learns of a protected activity and the subsequent adverse employment action, the
employee must couple temporal proximity with other evidence of retaliatory conduct to establish
causality,” Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008). See also
Spengler, 615 F.3d at 494–95 (holding a span of roughly three weeks between the plaintiff’s
complaint and termination created an inference of causation when coupled with a change in his
supervisor’s behavior); Barrett v. Whirlpool Corp., 556 F.3d 502, 516–17 (6th Cir. 2009)
Nos. 13-4145/ 14-3816/ 15-3462 Braun v. Ultimate Jetcharters Page 13
(considering temporal proximity in conjunction with “whether the employer treated the plaintiff
differently from similarly situated individuals”).
In this case, the evidence produced at trial established that Plaintiff was terminated
roughly three weeks after she sent her email to Rossi and Parsons. This is comparable to the
roughly three-week gap that we found significant in Spengler, 615 F.3d at 494–95. Importantly,
this temporal proximity was coupled with Plaintiff’s testimony that she did not commit the errors
for which she was purportedly terminated, or that some of those same errors were sometimes
committed by non-terminated male coworkers. Together, these facts were sufficient to establish
the fourth element of Plaintiff’s prima facie case.6 See Barrett, 556 F.3d at 516–17.
D. Pretext
Lastly, UJC argues that Plaintiff’s evidence was insufficient to show that UJC’s
professed legitimate reasons for her termination were a pretext for retaliation. “A plaintiff can
demonstrate pretext by showing that the employer’s proffered reason for the adverse action
(1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or
(3) was insufficient to warrant the challenged conduct.” Jackson v. VHS Detroit Receiving
Hosp., Inc., 814 F.3d 769, 779 (6th Cir. 2016) (internal brackets omitted) (quoting Dews v. A.B.
Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000)).
Plaintiff adduced evidence that UJC’s legitimate reasons for her termination were
pretextual using all three of the above methods. She testified that many of her alleged
wrongdoings had no basis in fact: she denied committing some of the procedural violations of
which she was accused or explained that her actions did not actually deviate from standard
procedures or violate regulations. Plaintiff also testified that the alleged violations of procedures
and regulations “did not actually motivate” her termination, id.; rather, Gordon told her that she
was fired for sending “[i]nappropriate e-mails” and because her “[c]onduct while on the road . . .
6
We disagree with UJC’s contention that because the complained-of harassment was perpetrated by
coworkers, Plaintiff was required to establish the fourth element of her prima facie case using the so-called “cat’s
paw” theory of causation under Title VII. That theory involves imputing the unlawful animus of a non-
decisionmaker onto the plaintiff’s employer where the non-decisionmaker precipitated the adverse employment
action for discriminatory reasons. See generally Staub v. Proctor Hosp., 562 U.S. 411 (2011). But here, Gordon’s
retaliatory animus is what created liability, not Rossi’s and Wells’ discriminatory animus. Thus, there was no need
for Plaintiff to impute her coworkers’ motivations onto Gordon.
Nos. 13-4145/ 14-3816/ 15-3462 Braun v. Ultimate Jetcharters Page 14
while not performing job functions was not in line with [UJC’s] image.” (R. 120, PageID 1666–
67.) Finally, Plaintiff proffered evidence that, to the extent she may have violated procedures
and regulations, such violations were “insufficient to warrant” her termination because they were
commonplace among male employees who were not punished. See Jackson, 814 F.3d at 779.
The jury found such evidence sufficient to prove that UJC’s excuses were pretextual; the record
does not compel us to hold otherwise.
In sum, it is not the case that “reasonable minds could come to but one conclusion in
favor of” UJC, Smith, 813 F.3d at 306, and we therefore affirm the district court’s denial of
UJC’s motion for a directed verdict. Similarly, after “review[ing] the evidence and the district
court’s ruling,” we are not left with “a definite and firm conviction that the district court
committed a clear error of judgment” by declining to order a new trial. Callahan, 801 F.3d at
617 (internal quotation marks omitted).
II. UJC’s Objections to the Award of Punitive Damages and Attorney Fees
UJC argues that the district court abused its discretion by denying UJC’s motion for
remittitur of punitive damages. We note, however, that UJC’s briefing on this issue addresses
only the legal sufficiency of the evidence supporting the jury’s award of punitive damages in this
case. (See, e.g., Def.’s Br. at 40–41 (“As a matter of law there was not sufficient evidence to
allow a jury to conclude that UJC had acted with actual malice.”).) In other words, UJC makes
no argument that the punitive damages awarded to Plaintiff were excessive, rather than legally
unavailable to Plaintiff due to insufficient evidence proffered at trial. Cf. Sykes v. Anderson,
625 F.3d 294, 322–23 (6th Cir. 2010) (setting out a fact-intensive, three-factor test for
determining whether remittitur is necessary to correct an excessive punitive damages award).
Notwithstanding the fact that these sufficiency arguments are likely waived,7 we find them
unpersuasive.
7
This case is analogous to Sykes, in which we held that the defendants had waived their argument that “the
evidence at trial failed to show that the Defendants’ actions were reprehensible enough to support a punitive-
damages award” because the defendants failed to raise that argument in their pre-verdict Rule 50(a) motion. See
625 F.3d at 322. The only arguments preserved by UJC’s Rule 50(a) motions concerned the merits of Plaintiff’s
retaliation claim.
Nos. 13-4145/ 14-3816/ 15-3462 Braun v. Ultimate Jetcharters Page 15
“It is well-settled that [Ohio Rev. Code §] 4112.99 permits an award of punitive damages
in a discrimination claim” brought under Ohio Rev. Code Chapter 4112. Waddell v. Roxane
Labs., Inc., No. 03AP-558, 2004 WL 1103710, at *13 (Ohio Ct. App. 2004). To receive punitive
damages, Ohio law requires a Plaintiff to prove by clear and convincing evidence, see Ohio Rev.
Code § 2315.21(D)(4)), that the defendant possessed “actual malice.” Preston v. Murty,
512 N.E.2d 1174, 1175 (Ohio 1987). “[A]ctual malice . . . is (1) that state of mind under which a
person’s conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious
disregard for the rights and safety of other persons that has a great probability of causing
substantial harm.” Id. at 1176.
Below, the district court held that Plaintiff adduced sufficient evidence of actual malice at
trial because her evidence suggested that “UJC relied upon acceptable or routinely tolerated
behavior to support its decision to terminate plaintiff’s employment, and . . . this decision came
within weeks of plaintiff’s written report of alleged sexual harassment.” (R. 163, PageID 2997.)
On review of the record, we agree with the district court that such evidence provided a sufficient
basis on which the jury could find, by clear and convincing evidence, that UJC acted with actual
malice when it terminated Plaintiffs’ employment. We therefore have no reason to believe that
“reasonable minds could come to but one conclusion” in favor of UJC, Smith, 813 F.3d at 306, or
that the district court abused its discretion by denying UJC’s motion for remittitur, see Am. Trim,
L.L.C. v. Oracle Corp., 383 F.3d 462, 475 (6th Cir. 2004) (holding that a district court abuses its
discretion by remitting damages where “there is any credible evidence to support [the] verdict”).
We are likewise unpersuaded by UJC’s argument that the district court abused its
discretion by granting Plaintiff’s motion for attorney fees. Under Ohio law, “[i]f punitive
damages are proper, the aggrieved party may also recover reasonable attorney fees.” Columbus
Fin., Inc. v. Howard, 327 N.E.2d 654, 658 (Ohio 1975). The Supreme Court of Ohio has
reaffirmed this principle as recently as 2000, see Galmish v. Cicchini, 734 N.E.2d 782, 795
(Ohio 2000); the Court of Appeals of Ohio has reaffirmed this principle as recently as 2014, see
Whetstone v. Binner, 15 N.E.3d 905, 911 (Ohio Ct. App. 2014). Tinney v. Tite, No. H-11-006,
2012 WL 1900546 (Ohio Ct. App. 2012), upon which UJC relies, neither addresses nor
abrogates this principle of Ohio law.
Nos. 13-4145/ 14-3816/ 15-3462 Braun v. Ultimate Jetcharters Page 16
III. Amendment of the Judgment
Standard of Review
We review a district court’s decision to grant relief pursuant to Federal Rule of Civil
Procedure 60(a) for abuse of discretion. See In re Walter, 282 F.3d 434, 440 (6th Cir. 2002).
“A clear example of an abuse of discretion exists where the trial court fails to consider the
applicable legal standard or the facts upon which the exercise of its discretionary judgment is
based.” Id. (quoting Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997)).
Analysis
Under Rule 60(a), a district court “may correct a clerical mistake or a mistake arising
from oversight or omission whenever one is found in a judgment, order, or other part of the
record.” Fed. R. Civ. P. 60(a). “The basic purpose of the rule is to authorize the court to correct
errors that are mechanical in nature.” In re Walter, 282 F.3d at 440. Whereas Rule 60(a) may
not be used in “instances where the court changes its mind, either because it made a legal or
factual mistake in making its original determination,” id. (quoting Blanton v. Anzalone, 813 F.2d
1574, 1577 n.2 (9th Cir. 1987)), the Rule can be used to “correct mistakes or oversights that
cause the judgment to fail to reflect what was intended at the time of trial,” id. at 441 (quoting
Vaughter v. E. Air Lines, Inc., 817 F.2d 685, 689 (11th Cir. 1987)). In sum, “when a court has
undertaken to make the judgment or record speak the truth rather than something other than what
was originally pronounced[,] the court has not abused its discretion in granting relief under Rule
60(a).” Id. (internal quotation marks omitted).
Below, the district court held that Rule 60(a) provided the necessary authority for
amending Plaintiff’s judgment against Ultimate Jetcharters, Inc. to reflect that Ultimate
Jetcharters, LLC was UJC’s proper moniker. Whether this use of Rule 60(a) was appropriate
under the circumstances appears to be an issue of first impression in this Circuit. However, as
noted by the district court, our analysis need not start from scratch: the Second Circuit’s decision
in Fluoro Electric Corp. v. Branford Associates, 489 F.2d 320 (2d Cir. 1973), addressed a
similar use of Rule 60(a).
Nos. 13-4145/ 14-3816/ 15-3462 Braun v. Ultimate Jetcharters Page 17
In Fluoro, the plaintiff sued “Branford Associates, a corporation” for breach of contract.
Id. at 322. In its answer, the defendant described itself as “Branford Developers, Inc. (sued
herein as Branford Associates).” Id. The plaintiff ultimately obtained a judgment against
“Branford Associates, a corporation, a/k/a Branford Developers, Inc.” Id. It was later revealed,
however, that “Branford Associates” was a partnership, not a corporation; and “Branford
Developers, Inc.” was an entity wholly separate from the partnership. Id. at 323–24. When the
plaintiff attempted to collect on the judgment from a bank holding an account in the name of
“Branford Associates,” the bank requested clarification before releasing any funds. Id. at 322.
In response, the plaintiff filed a Rule 60 motion to strike the words “a corporation” from
“Branford Associates,” thus allowing the plaintiff to collect against the partnership. Id. The
district court granted the motion over the defendant’s opposition. Id. at 323.
The Second Circuit affirmed, holding that the district court had simply “correct[ed] . . . a
misnomer under Rule 60(a).” Id. at 326. In so doing, the court stressed that
[t]o the plaintiff, to the trial judge, and to the jury it was plain that only one group
of men had contracted with the plaintiff, a group known as Branford
Associates. . . . [U]nder the circumstances, it is clear that it was Branford
Associates which the plaintiff sought to hold liable, regardless of its legal status.
Id. at 325. The court also noted that, because the case was litigated as though the partnership
were a party, no practical prejudice resulted from correction of the judgment: “Had this
[misnomer] been corrected earlier, no other persons would have been served in the action. No
others would have appeared before the court.” Id. at 326. Finally, the court found it relevant that
the defendant’s own actions during the trial contributed to any confusion between the partnership
and the corporation:
[W]hen the [district] court charged the jury to the effect that the defendant was
‘Branford Associates, Inc.,’ no objection or request for modification was raised by
the defense. In fact, it appears that there was never any objection in open court,
or during the pretrial stages, to the repeated use of the phrase ‘Branford
Associates’ or ‘Branford Associates, Inc.’ in references to the defendant by the
court and by the plaintiff.
Id. at 325.
Nos. 13-4145/ 14-3816/ 15-3462 Braun v. Ultimate Jetcharters Page 18
The facts of this case bear a number of similarities to those in Fluoro. Even a cursory
review of the record reveals that the parties, the judge, and the jury knew that Plaintiff’s suit was
brought against her former employer, regardless of that entity’s name or legal structure. Indeed,
the entire case was litigated as though Plaintiff’s former employer—Ultimate Jetcharters, LLC—
was the defendant. As one example, UJC’s defense included the testimony of numerous LLC
employees—not the least of whom was John Gordon, the president and CEO of the LLC—and
that testimony was presented by counsel from the same small law firm that now represents the
purportedly non-liable Ultimate Jetcharters, LLC.8 In sum, there is no reason to believe that the
trial would have looked any different had the misnomer been corrected earlier in the
proceedings. Thus, no practical prejudice resulted from correction of the judgment to reflect that
Ultimate Jetcharters, LLC was the proper moniker of the defendant against whom judgment was
entered.
Further likening this case to Fluoro, UJC’s witnesses and counsel were complicit in
representing that Ultimate Jetcharters, Inc. was the defendant’s proper name. UJC’s contribution
to any confusion started early: although UJC’s answer ambiguously “admit[ted]” that it was
“initially a corporation . . . but was converted to an [LLC]” (R. 4, PageID 40), UJC never argued
that Ultimate Jetcharters, Inc. was the wrong defendant in its subsequent filings. Indeed, in its
motion for summary judgment, UJC referred to itself as “Ultimate Jetcharters, Inc.” and
thereafter represented that that entity was Plaintiff’s former employer. These misrepresentations
continued into trial, as when the parties’ joint proposed jury instructions identified “Ultimate
Jetcharters, Inc.” as Plaintiff’s former employer; the parties’ joint submission of stipulated facts
committed the same “mistake,” and those stipulated facts were read to the jury.9
We find Fluoro’s reasoning persuasive and its disposition appropriate under the
circumstances of this case. Based on the above facts, it is clear that the judgment’s listing of
8
The letter to Plaintiff’s counsel from UJC indicates that Ultimate Jetcharters, LLC is represented by the
law firm of McNamara, Demczyk Co., L.P.A. Sidney Freeman, who served as Ultimate Jetcharters, Inc.’s lead
defense counsel at trial and whose name appears on UJC’s briefs before this Court, is “of counsel” at that law firm.
9
Before these instructions and stipulated facts were read to the jury, the district court held a sidebar in order
to discuss with counsel some stylistic changes that it wanted to make to those documents. The court stated: “there
are a number of times where ‘Inc.’ is included. We[] already defined Ultimate Jetcharters, so we’re just going to
take the ‘Inc.’ out because we’ve defined it that way previously.” (R. 123, PageID 2483.) UJC’s counsel made no
objections or clarifying statements at that time.
Nos. 13-4145/ 14-3816/ 15-3462 Braun v. Ultimate Jetcharters Page 19
Ultimate Jetcharters, Inc. as defendant was a simple misnomer. Affirming the district court’s
application of Rule 60(a) in this case therefore comports with our own Circuit’s precedent
establishing that Rule 60(a) may be used to “correct mistakes or oversights that cause the
judgment to fail to reflect what was intended at the time of trial.” In re Walter, 282 F.3d at 441.
Stated in the negative, nothing about the proceedings below suggests this was an “instance[]
where the court change[d] its mind.” Id. (quoting Blanton, 813 F.2d at 1577 n.2).
Finally, we would be remiss if we did not mention the letter UJC sent to Plaintiff’s
counsel when Plaintiff attempted to collect on the judgment. After implying that the judgment
was useless against Ultimate Jetcharters, LLC, that letter nevertheless offered Plaintiff
$125,000.00 in settlement of her judgment against Ultimate Jetcharters, Inc. We find it unlikely
that UJC would have offered such a generous settlement had it genuinely believed itself to be a
victim of circumstance, or that it would be deprived of due process by virtue of an amendment to
the judgment. Rather, we agree with the district court that the letter is more indicative of a
litigation strategy based on “roll[ing] the dice at trial and then hid[ing] behind a change in
corporate structure when it comes time to collect on the judgment.” (R. 185, PageID 3201.) We
decline to endorse that strategy, and hold that Rule 60(a) provided a proper basis for amending
the judgment to reflect UJC’s correct moniker.
CONCLUSION
For the reasons stated above, we AFFIRM the district court’s judgment in full.